An interesting case in the 10th circuit on First Amendment rights, McDonnell v City and County of Denver. It is only a ruling on the US District Court decision on an injunction against enforcement pending the case outcome. So the final decision on the merits in the case are still pending. But the discussion of the First Amendment Rights and development of law to balance those rights against public safety interests might be of interest and perhaps even useful if one is developing or modifying laws on this subject.

In yet another blow to DUI enforcement, the Kansas Appellate Court issued a ruling on Dec. 22, 2017, in State v Robinson striking down the Preliminary Breath statute. It is unclear whether the opinion will be appealed. The ruling centers on applying the Ryce decision by the Kansas Supreme Court to preliminary breath testing based on a criminal charge for refusing the test, i.e. the suspect withdrawing their implied consent. Check with your local prosecutors for advice on handling the PBT requests at this point.

On December 18, 2017, the 10th Circuit Court of Appeals has reversed a Kansas City US District Court case ruling a protective sweep of a home went too far and resulted in officers gaining information used to obtain a search warrant for the whole house. See US vs. Stephen Bagley.

KEY STATEMENT IN DECISION: The seminal precedent is Maryland v. Buie, 494 U.S. 325 (1990). There the Supreme Court allowed protective sweeps in two situations. In the first situation, authorities can look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” 494 U.S. at 334. In the second situation, authorities can look elsewhere in the house upon specific, articulable facts supporting a reasonable belief that someone dangerous remains in the house.

On May 23, 2017, the 10th circuit ruled a municipal court conviction is not sufficient for a federal charge of illegal possession of a firearm in a case of a prior domestic battery conviction in a municipal court. As it stands now, unless the 10th Circuit opinion from yesterday is overturned which I believe is unlikely, there is literally no state or federal criminal sanction in Kansas for a person possessing a firearm in Kansas after conviction of domestic battery in a municipal court. That is not good for our domestic violence victims and programs.

US Supreme Court Denies Certiorari on a civil forfeiture case.March 6, 2017LISA OLIVIA LEONARD v. TEXASThe case appears to have been denied due to a procedural defect and not because the court isn't looking for a civil forfeiture case to hear.

The case is out of Texas and the denial order is worth reading as it casts doubt on the due process of the civil forfeiture process and begs for a case that can procedurally come before the court.

10th Cir. Case, Vogt v. City of Hays (KS) involving investigation of officer: Whether the self-incrimination clause of the Fifth Amendment prohibits the use of compelled statements in a probable cause hearing, whether four officers were entitled to qualified immunity, and whether the district court properly dismissed the plaintiff’s claims against two municipalities.

﻿Key takeaway from the ruling: The 10th circuit has now established "The Fifth Amendment protects individuals against compulsion to incriminate themselves “in any criminal case.” U.S. Const. amend. V. This amendment prohibits compulsion of law enforcement officers to make self-incriminating statements in the course of employment. Garrity v. New Jersey, 385 U.S. 493, 500 (1967). As a law enforcement officer, Mr. Vogt enjoyed protection under the Fifth Amendment against use of his compelled statements in a criminal case."

Another key takeaway is this statement from the ruling: ". . . this right was violated in 2013 and 2014 when Mr. Vogt’s compelled statements were allegedly used to develop investigatory leads, initiate a criminal investigation, and bring charges."

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